Page:Encyclopædia Britannica, Ninth Edition, v. 24.djvu/738

Rh 696 WRIT WARRANT (q.v.) corresponds generally to the writ of the Supreme Court. Most of the present law on the subject of writs is contained in the Rules of the Supreme Court, 1883, Ord. xlii.-xliv., and in the Crown Office Rules, 1886. Both sets of rules contain numerous pre cedents in their schedules. By Ord. ii. r. 8 of the rules of 1883 all writs (with certain exceptions) are to be tested in the name of the lord chancellor, or, if that office be vacant, in the name of the lord chief justice. The main exceptions are those which occur in crown practice, which are tested by the lord chief justice, The writ of error bears the tests of the king or queen, &quot;witness our selves.&quot; Before the issue of most writs a prxtipe, or authority to the proper offices to issue the writ, is necessary. This is of course not to be confounded with the old original writ of praecipe. Writs affecting land must generally be registered in order to bind the land (see REGISTRATION). A writ cannot as a rule be served on Sunday (see SUNDAY). Some of the more important modern writs (other than those of an extrajudicial nature) may be shortly noticed. HABEAS CORPUS, MANDAMUS, and PROHIBITION (yg.v.) have been already treated. Writs are generally, unless where the contrary is stated, addressed to the sheriff. Abatement or nocu- mento amorendo enjoins the removal of a nuisance iu pursuance of a judgment to that effect. Ad quod damnum is for the purpose of inquiring whether a proposed crown grant will be to the damage of the crown or others. It is still in use, and recent examples will be found in the London Gazette. If the inquiry be determined in favour of the subject, a reasonable fine is paj able to the exchequer by 27 Edw. I. st. 2. Attachment is issued as a means of support ing the dignity of the court by punishment for contempt of its orders (see CONTEMPT OF COURT). Since the Judicature Acts a uniform practice has been followed in all the branches of the High Court, and a writ of attachment can now only be issued by leave of the court or a judge after notice to the party against whom it is to be issued. Capias : the old writs of capias ad satisfaciendum and capias utligatum may still bo used, but their importance has been much diminished since the alterations made in the law by the Debtors Act, 1869, and the abolition of civil outlawry (see OUT LAW). Cirtiorari is a writ in very frequent use, by which the pro ceedings of an inferior court are brought up for review by the High Court. In general it lies for excess of jurisdiction as mandamus does for defect. The Summary Jurisdiction Act, 1879, makes the writ no longer necessary where a special case has been stated by a court of quarter sessions. Delivery enforces a judgment for the delivery of property without giving the defendant (unless at the option of the plaintiff) power to retain it on payment of the assessed value. Distrincjas lay to distrain a person for a crown debt or for his appearance on a certain day. Its operation has been much curtailed by the substitution of other proceedings by 28 and 29 Viet. c. 104, and the rules of the Supreme Court. It now seems to lie only against inhabitants for non-repair of a highway. Dis- tringas nuper vicecomitem is a writ calling on an ex-sheriff to account for the proceeds of goods taken in execution. Elcgit is founded on the Statute of Westminster the Second, and is so named from the words of the writ, that the plaintiff has chosen (clegit) this particular mode of satisfaction. It originally ordered the sheriff to seize a moiety of the debtor s land and all his goods, save his oxen and beasts of the plough. By 1 and 2 Viet. c. 110 the elegit was extended to include the whole of the lands, and copy holds as well as freeholds. By the Bankruptcy Act, 1883, an cltgit no longer applies to goods. Error, the only example of an original writ remaining, was at one time largely used in both civil and criminal proceedings. It was abolished in civil procedure by the Common Law Procedure Act, 1852, and proceedings in error by the rules made under the Judicature Act, 1875. A writ of error to the Queen s Bench Division still lies in criminal cases, though it is rarely brought, for it only lies for mistakes appearing on the record, and recent legislation has given large powers of amending such mistakes. The fiat of the attorney-general is neces sary before it can be sued out. Exigent (with proclamation] forms part of the process of outlawry now existing only against a criminal. It depends on several statutes, commencing in 1344, and is specially mentioned in the Statute of Provisors of Edward III., 25 Edw. III. st. 6. Extent is the writ of execution issued by the crown for a crown debt of record. The sale of chattels seized under an extent takes place under a writ of venditioni exponas. A crown debtor is entitled to an extent in aid against a person indebted to him. Where a crown debtor has died a writ reciting his death, and so called diem clausit exlremum, issues against his property. Fieri facias is the ordinary writ of execution on a judgment commanding the sheriff to levy the sum, interest, and costs on the personal pro perty of the party. Where the sheriff has not sold the goods, venditioni crponas issues to compel him to do so. Where the party is a beneficed clergyman, the writ is one of fieri facias de bonis ccclesiasticis or of sequcstrari facias (addressed to the bishop). The latter writ also i.ssues in other cases of an exceptional nature, as against a corporation and to seize a pension. It is addressed to commissioners, not to the sheriff. Habcre facias posscssioncm is given to the owner of a tithe or rent charge, enabling him to have possession of the lands chargeable therewith until arrears due to him are paid (see TITHES). Indicavit is still nominally grantable under the Statute De Conjunctim Feoffatis of 34 Edw. I., and is a particular kind of prohibition granted to the patron of an advow- son. Inquiry issues for the assessment of damages by the sheriff or his deputy. It represents to some extent the old writ of justicics, and the later writ of trial allowed by 3 and 4 Will. IV. c. 42, but is narrower in its operation, for under the last-named writs the whole case or issues under it could be tried. Before an inquiry the liability has been already established. Levari facias is the means of levying execution for forfeited recognizances (see RECOGNIZANCE). The Bankruptcy Act, 1883, abolished it in civil proceedings. A c exeat regno was at one time issued by virtue of the prerogative to prevent any person from leaving the realm, a form of restraint of liberty recognized by parliament in 5 Ric. II. c. 2. It has now become a means of preventing a debtor from quitting the kingdom, and so withdrawing himself from the jurisdiction of the court with out giving security for the debt. There is some doubt whether it has not been impliedly superseded by the powers given by Ord. Ixix. of the Rules of the Supreme Court. Non omittas is for executing pro cess by the sheriff in a liberty or franchise, where the proper officer has neglected to do so. It rested originally chiefly upon the Statute of Westminster the Second, c. 39, and is now regulated by the Sheriffs Act, 1887, which repeals the previous enactment. Possession (also called assistance} enjoins the sheriff to give possession of land to the party entitled thereto under a judgment for such possession. In admiralty, where the judgment is for possession of a ship, the writ is addressed to the marshal. Proccdendo is the converse of prohibi tion. It directs the lower court to proceed with the case. It also lies to restore the authority of commissioners suspended by supcr- scdeas. Restitution restores property, either real or personal, after the right to it has been judicially declared. Thus it lies on behalf of the owner of real property under the statutes of forcible entry and of personal property under the Larceny Act, 1861. Significavit, once a writ, appears since 57 Geo. III. c. 127 to be merely a notice. It is a part of the proceedings against a person disobeying the order of an ecclesiastical court, and consists in a notification to the crown in Chancery of the disobedience. Thereupon a writ do contumace capiendo issues for his arrest. On his subsequent obedience or satisfaction, a writ of deliverance is granted. Precedents of these writs are given in the Act named. Subpoena is the ordinary means of securing the presence of a witness in court, and is addressed to the person whose attendance is required. It is so called from its containing the words &quot;and this you are not to omit under the penalty of 100,&quot; &c. The sub2}cena may be either ad tcstificandum, to give evidence, or duces tecum, to produce documents, &c., or both combined. By special order of a judge under 17 and 18 Viet. c. 23 a subpwna may be issued from any court in England, Scotland, or Ireland to compel the attendance of a witness out of the juris* diction. Summons is the universal means of commencing an action in the High Court. It is addressed to the defendant, and may be either generally or specially indorsed with a statement of the nature of the claim made. The latter form of indorsement is allowed in certain cases of debt or liquidated demand, and gives the plaintiff the great advantage of entitling him to final judgment in default of appearance by the defendant, and even in spite of appearance unless the defendant can satisfy a judge that he has a defence or ought to be allowed to defend. No statement of claim is necessary in case of a specially indorsed writ, the indorse ment being deemed to be the statement. The writ may be issued out of the central office or out of a district registry, and the plaintiff may name on his writ the division of the High Court in which he proposes to have the case tried. There are special rules governing the issue of writs in probate and admiralty actions. The writ remains in force for twelve months, but may be renewed for good cause after the expiration of that time. Service must be personal, unless where substituted service is allowed, and in special cases, such as actions to recover land and admiralty actions. Service out of the jurisdiction of a writ or notice of a writ is allowed only by leave of the court or a judge. Notice of the issue of a writ, and not the writ itself, is served on a defendant who is neither a British subject nor in British dominions. The law is contained in the Rules of the Supreme Court, especially Ord. ii.-xi. and xiv. Siqierscdcas com mands the stay of proceedings on another writ. It is often combined with procedcndo, where on a certiorari the High Court has decided in favour of the jurisdiction of the inferior court. It is also used for removing from the commission of the peace, and for putting an end to the authority of, any persons acting under commission from the crown. Venire facias is the first proceeding in outlawry, call ing upon the party to appear. Under the old practice a venire facias de novo was the means of obtaining a new trial. Venire inspiciendd appears still to be competent, and is a curious relic of antiquity. It issues on the application of an heir presumptive in order to determine by a jury of matrons whether the widow of a deceased owner of lands be with child or not. Almost exactly the same pro ceeding was known in Roman law under the name of interdiction de in^riciendo ventre, the proetor sending five women to make a report.